Busted by Brazil

Joe Sharkey in 2006, with the Embraer Legacy 600 that collided with a Brazilian airliner over the Amazon jungle.

Wednesday, February 1, 2012 - 9:00am

A horrific midair collision over the Amazon jungle in 2006 was just the beginning of this travel writer's troubles. Then came five years of court battles and, finally, a conviction for supposedly dishonoring the entire nation of Brazil. Here, Joe Sharkey reflects on the series of events that began with a BJT assignment and ended with a legal decision that has disturbing implications for all travelers.-Ed.

An ordeal that began more than five years ago when I was on assignment in Brazil for Business Jet Traveler is finally coming to an end.

At least I hope it is.

In mid-December, an appeals court in Parana, Brazil, convicted me on a bewildering array of charges that fall under the rubric of causing "dishonor" to that nation. The court said I must pay $50,000 in damages and issue a personal "retraction" in every publication where my alleged offensive comments appeared.

I haven't dignified the absurd libel and defamation charges by responding legally in Brazil. Hence the conviction will stand. It's part of a disturbing trend in which foreign litigants reach across international borders and seek to intimidate Americans for speech that is protected under the U.S. First Amendment.

The case stems from the collision at 37,000 feet of a Brazilian 737 airliner with an Embraer Legacy 600 business jet. All 154 people on the 737 died in a horrifying plunge into the central Amazon jungle in the Sept. 29, 2006 accident. Astonishingly, the badly damaged Legacy–on which I was a passenger–managed an emergency landing at a remote jungle airstrip a harrowing 25 minutes after the collision. All seven people aboard survived.

The lawsuit alleged that, in writing about the disaster, I had referred to Brazil as "a country of Carnival, football, bananas, thieves and prostitutes" and that I had called Brazil "the most idiot of all idiots" among nations. Most bizarrely, the complaint noted a "rumor" that I'd been aboard the Legacy as a player in some unspecified plot to "show that the aerial space [over the central Amazon] is a no-man's land" and that consequently, I had somehow prevailed on the Legacy's two American pilots to turn off the airplane's transponder to avoid "detection," which led to the collision with the 737.

A process-server working for a New York law firm engaged by the Brazilians delivered the complaint in the dead of night more than two years ago to my home at the time in New Jersey. A revised complaint, including a petition for a criminal charge on top of the civil charges, was delivered about a year later and also late at night to my new home in Tucson, Ariz.

I was flabbergasted. Even if the charges were true, which they were not, calling a country "the most idiot of all idiots" is not remotely a ground for libel under U.S. law. The complaint was even more confounding because the plaintiff who filed it–on behalf of herself and the 190 million other Brazilians said to be offended by my reporting and commentary–was a widow of one of those killed. Until I saw the lawsuit, I had never heard of her, let alone written a word about her.

I've been the business-travel columnist for The New York Times for 13 years. As soon as I was released from custody in Brazil and returned home three days after the crash, I wrote about it in a story that appeared on the front page of the Times and attracted international attention.

To my astonishment, hate mail and even death threats began pouring in from Brazil, where the media and the authorities had launched a campaign mired in anti-U.S. xenophobia that drove what I regarded as a reckless rush to criminalize the accident, scapegoat the Legacy's two American pilots and cover up the obvious role that Brazilian air-traffic control had played in the disaster. The U.S. National Transportation Safety Board subsequently concluded that the main probable cause of the crash was situational and systemic faults of Brazil's military-run air-traffic-control system.

Brazilian authorities detained the pilots, Joe Lepore and Jan Paladino, until a judge ordered their release two months after the crash. In the interim, I had begun reporting and commentating in a personal blog on what I saw as an outrageous cover-up in Brazil. The blog aggravated the anti-American fury in that country, where various media incessantly linked to my posts. In fact, "most idiot of all idiots" and other strangely worded insults mentioned in the lawsuit all actually came from remarks made by various Brazilians in the endless links and re-links that play leap-frog forever down the Crazy Lane of Internet controversy.

A Brazilian court subsequently convicted Joe and Jan, in absentia, of criminal charges of neglect. A judge rebuffed demands for prison terms and sentenced them to community service, saying it could be served under Brazilian Embassy supervision in the U.S. The pilots, who can't under existing treaties be extradited to Brazil, are appealing.

As for myself, I am forever aware of the inexplicable turn of luck that left me and six fellow travelers alive that day as 154 others died. Still, the past five years have been a personal ordeal, above and beyond the legal turmoil.

Three weeks after the crash, my father died after a long illness. In the delirium of his pain-wracked final weeks, he had assimilated bits of TV news that somehow convinced him that his first-born son had been killed in an airplane crash in Brazil.

The last words I heard him utter were as I stood with my mother at his deathbed. He woke up for the last time and with tears in his eyes told his wife of 60 years, "That man looks a little like our Joe."

A year later, my wife was diagnosed with breast cancer. (She has since recovered.) A year after that, my mother died.

Now, five years after that collision over the Amazon, I finally sense that "closure" (that awful word) may be at hand. My wife and I have a new life in Arizona. A year ago, I spread my parents' ashes on the cactus-dotted hill behind our house, where the sun rises with glory each morning over the Rincon Mountains.

Friends have helped to lead me back home over these five years. My wife, Nancy, of course. But also Richard Pedicini, an American expatriate in São Paulo who guided me indefatigably through the Portuguese-language morass in Brazil. David McCraw, the New York Times chief counsel, and other top managers at the Times, who have steadfastly been in my corner as an aviation disaster evolved into a First Amendment case with implications for any American, not just a journalist, who travels overseas and has opinions to express at home that someone abroad might find objectionable.

Which brings me to Rachel Ehrenfeld. A New York author and scholar, Dr. Ehrenfeld was already deeply involved when I met her in an initiative to readdress the growing problem of spurious foreign libel actions against Americans. Dr. Ehrenfeld herself had been successfully sued, in England, by a Saudi billionaire who claimed that she libeled him when he was briefly, and accurately, mentioned in her book Funding Evil: How Terrorism Is Financed and How to Stop It, which was published in the U.S. and sold only a handful of copies in Britain.

The Ehrenfeld case involved "libel tourism," the phenomenon in which foreign litigants, knowing they are unable to win specious libel cases in the U.S., instead file suit in England, where libel law is very ­favorable toward plaintiffs. (Keep in mind that with the Internet, much of what is published in the U.S. is now instantaneously "published" everywhere in the world.)

With support from her growing army of prominent First Amendment legal and political activists, Dr. Ehrenfeld caused several states to pass laws that prohibit U.S. courts from enforcing foreign libel judgments in cases where the alleged offenses would not constitute libel under American law. Then she turned her attention to the U.S. Capitol.

My case indicated a widening of the problem, in that the plaintiff was a citizen of the foreign country, not a libel "tourist." And, as Dr. Ehrenfeld wrote in the summer of 2010, the complaint was not that I had libeled a person, but that I had offended an entire nation. "Sharkey may even face criminal charges and be tried in absentia for his accurate and necessary reporting on matters of life and death," she wrote.

My case and others like it, involving Americans who were increasingly being sued by foreigners seeking to reach into the U.S. and subvert the First Amendment, became part of her campaign. She triumphed in 2010 when President Obama signed into law the so-called SPEECH Act, which blocks U.S. courts from enforcing frivolous defamation judgments against Americans for speech here that is fully protected under our First Amendment.

As I said, the ordeal for me seems to be over. Now that the civil conviction is in place, I'm told it's unlikely that a Brazilian court will pursue the threatened criminal charge of causing offense to the nation (under a law that, curiously, is a legacy of ­Brazil's repressive 1964-1985 military dictatorship).

The new law is good but not perfect. It blocks enforcement in the U.S. of judgments like the one against me, but it can't, for example, prevent a foreign court from imposing sanctions that might affect an American's ability to travel in that country or in countries closely aligned to it. Still, the SPEECH Act does effectively address what its language calls the "dramatic threat" posed by some foreign entities that seek to "undermine" the First Amendment in the U.S. by reaching across our borders to stifle free speech of Americans.

And for that, every one of us who travels the world and occasionally might have something to observe about it back home can be grateful.

Plain text

Quote/Unquote

“"How many leaders actively seek out and encourage views alien and at odds with their own? All too few...Who in your organization serves as your Challenger In Chief? Interrogating the choices you are considering making? Making you consider the uncontemplated, the unimaginable and that which contradicts or refutes your position? And also challenging you?"”

-Noreena Hertz, author of Eyes Wide Open: How To Make Smart Decisions in a Confusing World